GLATFELTER v. WORKERS' COMPENSATION APPEAL BOARD

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGELEAVITT.

P.H. Glatfelter (Employer) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) granting James Henry's (Claimant) claim for an occupational disease. In doing so, the Board affirmed the decision of the Workers' Compensation Judge (WCJ) that Claimant proved that exposure to hazardous materials at Employer's plant caused him to develop a disabling lung disease. Employer does not dispute that Claimant's lung disease was caused by his employment and is disabling. Employer contends only that Claimant failed to present evidence adequate to prove that his disability occurred within 300 weeks of his last exposure to hazardous materials as required by Section 301(c)(2) of the Workers' Compensation Act (Act).1 Because Claimant did meet this burden of proof, we affirm.

Employer is a paper manufacturer. Claimant began working for Employer as a pipe-fitter in 1972. Claimant stopped working on February 23, 2009, because of debilitating symptoms he was experiencing, including shortness of breath and uncontrollable coughing.

Claimant filed a claim petition alleging that he had pulmonary fibrosis caused by long-time exposure to hazardous materials at Employer's workplace. The matter was assigned to a WCJ who held hearings at which both parties appeared and presented evidence.

Claimant testified in support of his claim, describing his working conditions with Employer. Claimant testified that there was insulation containing asbestos on the sides of the power boilers and covering the pipes throughout the paper mill. During the 1970s, 1980s and early 1990s, Claimant routinely removed asbestos in order to make repairs without wearing special protective clothing, gloves, a mask or breathing apparatus because no one knew that asbestos was a health hazard. Sometime in the 1990s, Employer adopted an asbestos awareness program and began having trained personnel remove asbestos when necessary.

Claimant estimated that his last exposure to asbestos in Employer's workplace occurred in 2006. A pipe in the ceiling was leaking steam and had made the insulation around it "all wet and mushy." Reproduced Record at 19a (R.R. ___). Claimant removed the insulation in order to pinpoint the location of the leak and repair it. The insulation was not marked "asbestos" and it was too hot from the steam for Claimant to hold in his hands and inspect it. Claimant believed Employer had the insulation tested after Claimant removed it from the ceiling. Employer then "came out and either assumed or said that it was asbestos." Id. Claimant was unable to say when, prior to this incident, he had last been exposed to asbestos.

Claimant testified that in addition to asbestos, he was routinely exposed to lime dust. Claimant was responsible for doing maintenance and repair work two to four times each year inside Employer's large lime kiln. Although Claimant wore a paper mask when he entered the kiln, there was so much lime dust in the air that it was "like a snow storm" and made Claimant sneeze. R.R. 26a.

Claimant continued working for Employer until February 23, 2009, when he had to be hospitalized. Claimant uses an oxygen tank and takes steroids for his lung problems. His doctor has not released him to return to any type of employment.

Claimant submitted the deposition testimony of his treating pulmonologist, Michael H. Ader, M.D. Claimant visited Dr. Ader on March 19, 2009, complaining of shortness of breath and reporting that he had significant asbestos exposure at work for over twenty years. Dr. Ader heard what he described as "crackles" in Claimant's lungs. Dr. Ader dep. at 9. Various tests, including a CAT scan of the chest and a lung biopsy, showed that Claimant has pulmonary fibrosis, i.e., scarring of the lungs. Given that Claimant is not a smoker and has no diseases that could cause pulmonary fibrosis, Dr. Ader opined that Claimant's lung disease was caused by occupational exposure to inhaled dusts including asbestos and lime dust. Claimant's prognosis is poor and he could require a lung transplant should his lung function further deteriorate.

Employer submitted the deposition testimony of Scott Manaker, M.D., Ph.D., who performed an independent medical examination of Claimant on December 11, 2009. Dr. Manaker agreed that Claimant has pulmonary fibrosis, but opined that the cause of his disease is unknown and not attributable to exposure to asbestos and lime dust.

The WCJ credited the testimony of Claimant and Dr. Ader, and rejected the testimony of Dr. Manaker except where consistent with Dr. Ader's testimony.2 The WCJ found that Claimant has pulmonary fibrosis caused by exposure to hazardous materials in Employer's workplace. The WCJ granted the claim petition and ordered Employer to pay Claimant total disability benefits as of February 23, 2009, and to pay for his medical treatment. Employer appealed and the Board affirmed. Employer then petitioned for this Court's review.3

On appeal, Employer argues that the Board erred in granting Claimant's claim petition because Claimant's evidence was insufficient as a matter of law to prove that his disability manifested within 300 weeks of his last exposure to the occupational hazard of asbestos.

In a claim petition proceeding, the claimant bears the burden of establishing all the necessary elements to support an award. Inglis House v. Workmen's Compensation Appeal Board (Reedy), 535 Pa. 135, 141, 634 A.2d 592, 595 (1993). An occupational disease is a compensable work injury; however, the claimant must prove more than that the occupational disease was caused by his employment and disables him. Pursuant to Section 301(c)(2) of the Act, the claimant must also prove that he became disabled within 300 weeks of his last actual exposure to the hazardous material in the workplace that is responsible for his condition. Cable v. Workmen's Compensation Appeal Board (Gulf Oil/Chevron USA, Inc.), 541 Pa. 611, 614-15, 664 A.2d 1349, 1351 (1995).4 If the claimant cannot meet this 300-week limitations period, his claim must fail. Id.5

Whether a claimant has been exposed to hazardous material in the workplace is a question of fact for the WCJ. Witco-Kendall Co. v. Workmen's Compensation Appeal Board (Adams), 562 A.2d 397, 400 (Pa. Cmwlth. 1989), petition for allowance of appeal denied, 525 Pa. 652, 581 A.2d 577 (1990). The claimant's "burden of proof related to this issue is not overly demanding." Id. (quoting Miller v. Workmen's Compensation Appeal Board (Warren Hess, Inc.), 452 A.2d 608, 609 (Pa. Cmwlth. 1982)). The claimant need not produce scientific evidence to prove the existence of a hazard. Witco-Kendall, 562 A.2d at 400-01. The testimony of a lay witness possessing first-hand knowledge and observation of a hazard in the claimant's working conditions, alone, can prove the existence of and exposure to such hazard. Gibson v. Workers' Compensation Appeal Board (Armco Stainless & Alloy Products), 580 Pa. 470, 486-87, 861 A.2d 938, 947-48 (2004); Witco-Kendall, 562 A.2d at 401. Such knowledge can come through formal education or practical experience in dealing with hazardous material. Gibson, 580 Pa. at 486, 861 A.2d at 948. The employer is free to rebut this lay testimony with scientific evidence that a hazard did not exist. Witco-Kendall, 562 A.2d at 401.

Because Claimant became disabled by his pulmonary fibrosis on February 23, 2009, he had to establish that he was exposed to hazardous material within three hundred weeks of that date, in other words between May 2003 and February 2009. The Board, citing Witco-Kendall, held that Claimant's testimony describing asbestos exposure in 2006 satisfied that burden. Employer argues that the Board should have applied Gibson, which is factually similar to this case, and supports the conclusion that Claimant's testimony was too vague to support a factual finding that he was exposed to asbestos in 2006.

In Gibson, the decedent's widow brought a fatal claim alleging that exposure to asbestos in the employer's steel plant caused the decedent's death from lung cancer. There was no mention of asbestosis on the death certificate, no mention in the medical records of asbestos exposure and no evidence that there was ever asbestos present in the employer's workplace. The claimant presented only the testimony of one of the decedent's co-workers who stated that he saw a "dark gray material" on some pipes and the ceiling that he believed to be asbestos. The co-worker had no training or experience identifying asbestos and could not state with certainty whether the material he saw was asbestos. He simply "went by what people said." Gibson, 580 Pa. at 484 n.8, 861 A.2d at 946 n.8. Our Supreme Court held that this lay testimony was insufficient to prove asbestos exposure because the co-worker did not have any personal knowledge of such. The Court distinguished Witco-Kendall, where the claim for occupational disease was granted, because there the employer conceded the presence of asbestos in the workplace, the claimant was diagnosed with asbestosis and the claimant testified to his asbestos exposure through his first-hand knowledge of his working conditions.

This case is distinguishable from Gibson. Claimant has been diagnosed with an asbestos-related disease. Employer does not dispute the long-time presence of asbestos in its workplace or Claimant's exposure to asbestos. Claimant acknowledged that he had difficulty identifying the contents of the insulation he removed in 2006 because the steam leak had rendered the material "all wet and mushy." R.R. 19a. However, Claimant testified that Employer had the insulation tested and acknowledged that it contained asbestos.

This is not a situation where Claimant had no idea whether asbestos was present in Employer's workplace and simply relied on what "people" told him. Employer informed him that there was asbestos in the insulation he had handled. An admission of a party opponent is admissible as an exception to the hearsay rule and is considered competent evidence. Sule v. Philadelphia Parking Authority, 26 A.3d 1240, 1243 (Pa. Cmwlth. 2011). Employer was free to rebut Claimant's testimony by presenting evidence that Employer removed all asbestos from its plant prior to 2006 or that it did not test the insulation in 2006 and tell Claimant it contained asbestos. Employer did not do so.

Claimant's asbestos exposure is not the sole cause of his illness. Although Employer refers to Claimant's condition as asbestosis, Claimant's doctor credibly testified that Claimant has pulmonary fibrosis caused by exposure to asbestos and lime dust. Claimant credibly testified that he was exposed to large amounts of lime dust multiple times each year when he had to do work inside Employer's lime kiln. In short, Claimant's testimony was sufficient to prove that he was exposed to hazardous materials in the workplace within 300 weeks of becoming disabled by pulmonary fibrosis.

For these reasons, the order of the Board is affirmed.

ORDER

AND NOW, this 30th day of July, 2013, the order of the Workers' Compensation Appeal Board dated December 19, 2012, in the above captioned matter is hereby AFFIRMED.